Could Vermont's nineteenth-century abortion statute, 13 V.S.A. § 101, be applied to physician assistants and advanced practice nurses, or only to people without medical training?

Plain-English summary

Representative Kilmartin asked the AG how Vermont's nineteenth-century abortion statute, 13 V.S.A. § 101, applied to a list of medical and non-medical practitioners. The statute imposed criminal penalties on anyone who "willfully administers, advises or causes to be administered anything to a woman pregnant" with intent to procure a miscarriage, except where necessary to preserve her life.

Assistant Attorney General Bridget Asay (with AG William Sorrell's approval) walked through the layered analysis.

First, the statute could not be applied to licensed physicians or osteopaths. The Vermont Supreme Court's 1972 Beecham v. Leahy decision held that applying § 101 to "medical practitioners" violated state and federal constitutional limits. The U.S. Supreme Court's Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) reinforced this by recognizing the right to choose abortion before viability and to obtain it without undue interference.

Second, the statute did not apply to physician assistants or advanced practice nurses (advanced practice registered nurses, including certified nurse midwives, adult nurse practitioners, and women's health nurse practitioners) if abortion fell within their approved scope of practice. PAs are regulated under 26 V.S.A. § 1732 and Board of Medical Practice rules requiring a written protocol or "scope of practice" filed with the Medical Board. APRNs are regulated under 26 V.S.A. § 1572(4) and Board of Nursing Rule VIII, with practice guidelines mutually agreed and signed by the APRN and a collaborating physician.

Third, the statute could be applied to laypersons and to medical professionals whose training, education, or experience did not authorize the abortion procedure. The opinion lists registered nurses, nursing assistants, LPNs, x-ray technicians, dentists, and attorneys as examples. Beecham's carve-out for "medical practitioners" did not extend that far. The opinion cites cases from New Jersey (Norflett), Michigan (Bricker), and the U.S. Supreme Court (Menillo) confirming that abortion statutes can constitutionally reach unlicensed laypersons.

The opinion then answered Representative Kilmartin's specific scenarios. Payment for the abortion is irrelevant under § 101. Performance in a private home is a clinical judgment for the practitioner, not a § 101 issue. A PA or APRN authorized to perform abortions may do so without the supervising physician physically present. A clinic without an on-site physician may employ an APRN to perform abortions because the APRN's collaboration relationship is with a physician, not necessarily with the clinic's staff. Clinic support staff face no criminal liability when the practitioner is lawfully performing abortions; their liability when an abortion is illegal would depend on knowledge and intent. Other criminal statutes (illegal practice of medicine, assault, reckless endangerment) might also apply to an unlawful abortion.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 2022 Dobbs v. Jackson Women's Health Organization decision overruled Roe and Casey. Vermont voters ratified Article 22 (Reproductive Liberty Amendment) of the Vermont Constitution in 2022, and the Vermont legislature enacted Act 47 (2023) protecting reproductive health care. The current state-law framework differs significantly from the 2005 framework analyzed in this opinion. Anyone evaluating today's scope-of-practice rules for abortion in Vermont should consult Article 22, Act 47, the current Board of Medical Practice rules for PAs, and the current Board of Nursing rules for APRNs.

Historical summary

For Vermont health care providers (at the time): The opinion confirmed that physicians, osteopaths, PAs (within written scope), and APRNs (within practice guidelines) could lawfully perform abortions in Vermont. RNs, LPNs, x-ray techs, and others could assist but not perform.

For licensing boards (at the time): The opinion put the burden on the Board of Medical Practice and the Board of Nursing to define scope of practice through individualized protocols and guidelines. The criminal statute reached only the unauthorized actor; whether someone was authorized was a board-rules question.

For clinic operators (at the time): A clinic could employ an APRN as the abortion provider without an on-site physician, provided the APRN had a properly approved collaborative practice agreement. Support staff were not exposed to § 101 liability when the procedure was being lawfully performed.

Common questions

Did the opinion address gestational limits?
No. The opinion focused on the practitioner-eligibility question. Roe and Casey set the constitutional limits at the time, but Vermont law has since changed.

Did the opinion advise that fetal viability mattered for who could perform abortions?
The opinion noted that some procedures might be more difficult later in pregnancy, and that an individual practitioner might be qualified for some procedures but not others. The opinion did not draw a categorical viability line. Scope-of-practice rules absorbed that question.

What about emergency situations?
The opinion cites 26 V.S.A. § 1583(1) for the proposition that emergency exceptions exist within the nursing statute. Persons not otherwise authorized might lawfully act in an emergency.

Citations and references

Statutes and rules:
- 13 V.S.A. § 101 (criminal abortion statute)
- 26 V.S.A. § 1732(4), (6); § 1736(b) (physician assistants)
- 26 V.S.A. § 1572(4); § 1583(1) (advanced practice nurses)
- Rules of the Vermont Board of Medical Practice §§ 5.1, 5.2(k), 7.3 (PA scope-of-practice protocols)
- State Board of Nursing Administrative Rules ch. 4, Rule VIII (APRN practice guidelines)

Cases:
- Beecham v. Leahy, 130 Vt. 164 (1972) (§ 101 unconstitutional as applied to medical practitioners)
- Roe v. Wade, 410 U.S. 113 (1973)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
- State v. Norflett, 337 A.2d 609 (N.J. 1975) (abortion statute applies to layperson)
- People v. Bricker, 208 N.W.2d 72 (Mich. 1973) (post-Roe prosecution of nonphysician)
- Connecticut v. Menillo, 423 U.S. 9 (1975) (federal constitution permits prosecution of laypersons)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/FO%202005-1.pdf

Original opinion text

Formal Opinion #2005-1
March 14, 2005
Rep. Duncan Frey Kilmartin
State House
Montpelier, VT 05633
Re: Applicability of 13 V.S.A. § 101 to abortions performed
by persons other than licensed physicians
Dear Representative Kilmartin:
You have asked for an opinion regarding the application of 13 V.S.A. § 101 to
abortions performed by persons other than licensed physicians and specifically
asked for responses to certain hypothetical situations involving a variety of medical
practitioners. Upon review of the issue, I conclude that section 101 does not apply
to abortions performed by licensed physicians and osteopaths. Nor does it apply to
abortions performed by physician's assistants or advanced practice nurses, if the
procedure falls within the practitioner's approved scope of practice. I address your
questions in more detail below by examining the interaction of section 101 with
Vermont's regulation of health care providers.
To begin with, section 101, which regulates abortion, must be construed in
light of federal and state constitutional requirements. The statute, originally
enacted in the nineteenth century, imposes criminal penalties on a person "who
willfully administers, advises or causes to be administered anything to a woman
pregnant, or employs or causes to be employed any means with intent to procure the
miscarriage of such woman, or assists or counsels therein, unless the same is
necessary to preserve her life." As you note in your letter, the Vermont Supreme
Court in 1972 held that this statute could not be applied to abortions performed by
"medical practitioners," because to do so would deny a woman medical aid except
where necessary to preserve her life. Beecham v. Leahy, 130 Vt. 164, 170-71 (1972).
Shortly after the Beecham decision, the United States Supreme Court in Roe v.
Wade, 410 U.S. 113, 163-64 (1973), held that States could not prohibit abortions
before viability. In Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992), the
Supreme Court reaffirmed Roe's "essential holding," including "the right of the
woman to choose to have an abortion before viability and to obtain it without undue
interference from the State." These decisions significantly narrowed the scope of
section 101.
These decisions do not leave section 101 a nullity, however. The Vermont
Supreme Court acknowledged in Beecham that the statute is "valid and necessary"
insofar as it "prevents unskilled and untrained persons from acting in an area
properly medical." No reported decisions after Beecham provide guidance on the
application of section 101 to abortions performed by "unskilled and untrained
persons." However, the high courts of other states with similar statutes have
upheld the prosecution of laypersons who perform abortions. See State v. Norflett,
337 A.2d 609 (N.J. 1975) (holding, post-Roe, that abortion statute authorizes
criminal prosecution of laymen for performing abortion and affirming conviction of
defendant with no medical training); People v. Bricker, 208 N.W.2d 72 (Mich. 1973)
(construing state statute in light of Roe and affirming conviction of nonphysician for
conspiracy to commit abortion). The United States Supreme Court has held that
the federal constitution does not prohibit such prosecutions. Connecticut v. Menillo,
423 U.S. 9 (1975).
The key issue under section 101 is the distinction between an untrained
and/or unlicensed "layperson" and a person who may lawfully perform an abortion
as part of the person's practice of medicine. In your letter, you suggest "only
physicians are authorized to perform the surgical procedure of abortion." However,
this view appears to be neither the practice in Vermont nor the view of the Boards
that supervise the practice of medicine and nursing in the State. As described in
more detail below, both physician's assistants and advanced practice nurses may, in
the appropriate circumstances, perform abortions.
Before proceeding, I should point out that there are different types of
abortion procedures (including nonsurgical abortion) and the difficulty of a
particular procedure may vary depending on the duration of the pregnancy and
other factors. An individual medical practitioner may be qualified to perform some
types of abortions but not others.
Some additional information about physician's assistants and advanced
practice nurses (often referred to as midlevel practitioners) may also be helpful to
this discussion. A physician's assistant is an "individual certified by the state of
Vermont who is qualified by education, training, experience and personal character
to provide medical services under the direction and supervision of a Vermont
licensed physician." 26 V.S.A. § 1732(4). The Board of Medical Practice regulates
physician's assistants, who are "considered the agents of their supervising
physicians in the performance of all practice-related activities." Rules of the Board
of Medical Practice § 5.1. The practice of a physician's assistant is defined by a
written protocol or "scope of practice" which details "those areas of medical practice,
including duties and medical acts, delegated to a physician assistant by the
supervising physician." Id. §§5.2(k), 7.3; see also 26 V.S.A. § 1732(6). A physician's
assistant may perform only those tasks that are within the supervising physician's
field of practice and for which the physician's assistant is qualified by education,
training, and experience. 26 V.S.A. § 1736(b). Thus, if a physician's assistant (1)
works under the supervision of a doctor who performs abortions, and (2) is qualified
by training and experience to perform abortions, he or she may lawfully do so,
assuming the supervising physician has identified and approved that task in a
written scope of practice filed with the Medical Board.
Advanced practice nurses also perform abortions in the state of Vermont. An
advanced practice nurse "means a licensed registered nurse authorized to practice
in this state who, because of specialized education and experience is endorsed to
perform acts of medical diagnosis and to prescribe medical, therapeutic or corrective
measures under administrative rules adopted by the [Board of Nursing]." 26 V.S.A.
§ 1572(4). The term "advanced practice registered nurse" [APRN] includes several
categories of practitioners, such as certified nurse midwives, adult nurse
practitioners, and woman's health care nurse practitioners. State Board of Nursing
Administrative Rules ch. 4, Rule VIII (a). Under the Board's rules, an advanced
practice registered nurse "performs medical acts independently within a
collaborative practice with a licensed physician under practice guidelines which are
mutually agreed upon between the APRN and collaborating physician and which
are jointly acceptable to the medical and nursing professions." Id. Rule
VIII(C)(4)(a). APRNs provide care under individual practice guidelines approved by
the Board of Nursing. Those guidelines "must reflect current standards of medical
and nursing practice." Id. Rule VIII(C)(4)(a), (g). The practice guidelines must also
be reviewed, mutually agreed upon, and signed annually by the APRN and the
collaborating physician. Id. Rule VIII(C)(4)(f). Depending on their education and
training, some APRNs may perform abortions under broad practice guidelines
approved by the Board.
To respond directly to the hypotheticals posited in your letter, section 101
would not apply to a physician's assistant or an advanced practice nurse who
performs abortions if the procedure falls within the practitioner's approved scope of
practice. The other medical professions you identify – registered nurse, nursing
assistant, licensed practical nurse, x-ray technician (radiologist), dentist, attorney –
are not authorized by training, education or experience to perform abortions.
Except in an emergency situation, see, e.g., 26 V.S.A. § 1583(1), persons other than
licensed physicians, osteopaths, physician's assistants, and advanced practice
nurses may not lawfully perform abortions. As with any medical procedure,
however, other persons, such as nurses and technicians, may assist an authorized
practitioner during an abortion procedure.
Your letter raises several other issues, which I address in turn below.

Consideration or payment for an abortion. Payment is irrelevant under

section 101. The statute neither prevents medical professionals from charging a fee
for their services nor allows laypersons to perform abortions even if they do not
charge for the procedure.

Performance of an abortion in a private home. The proper location for

provision of medical services – an office, clinic, hospital, or private home – appears
to be a matter entrusted to the judgment of medical professionals.

The involvement of a licensed physician. A physician's assistant or advanced
practice nurse who is authorized to perform abortions may do so outside the
physical presence of the supervising or collaborating physician. If a person were not
authorized to perform abortions, the fact that the person is employed by or has
received some training from a physician would not be sufficient to permit the person
lawfully to perform abortions.
The operation of a clinic (Scenario 15). You inquire whether a clinic may
employ a nurse or nurse practitioner to perform abortions if the clinic does not also
employ a physician. An advanced practice nurse authorized to perform abortions
may lawfully do so regardless of whether the clinic employs a physician. As
described above, the advanced practice nurse must practice in a collaborative
relationship with a physician. No state law requires a specific employment
relationship, however.
You also inquire about potential criminal liability for clinic staff, such as a
receptionist and scheduler. If the practitioner is lawfully performing abortions,
there is of course no criminal liability for any other employee of the clinic. Persons
who assist in procuring or performing illegal abortions could in some circumstances
face criminal liability, but their culpability would depend on their knowledge and
intent.

Other criminal statutes. A person who performs an illegal abortion might
face prosecution for other criminal offenses, such as illegal practice of medicine,
assault, or reckless endangerment. The charges that could be brought in a
particular case would depend upon the specific circumstances, including specific
acts, any injuries caused, and any representations made by the person who
performs the illegal abortion.

I trust this letter is responsive to your inquiry.
Sincerely,

Bridget C. Asay
Assistant Attorney General
APPROVED: ____
William H. Sorrell
Attorney General